What the Statistics won’t tell you about Stand Your Ground’s impact in Florida over the last decade.

            Earlier this summer, the United Nations Human Rights Committee, the body that reviewed the United States for its human rights record under the International Covenant on Civil and Political Rights (ICCPR), announced that it was giving the U.S. an unsatisfactory grade of C1 for its failure to take steps to address its recommendations to roll back “Stand Your Ground” laws. The Committee found “Stand Your Ground” laws to be “inconsistent” with the right to life under Article 6 of the ICCPR when it examined the U.S. in March of 2014 in Geneva.  The U.S. Government finally responded earlier this month, in which it admitted it had “nothing further to report” on Stand Your Ground laws, not having yet completed an investigation into the discriminatory impact of these laws that the Unites States Commission on Civil Rights began in March 2013.[1]

In October 2005 Florida’s legislature codified its jurisprudence on the Castle Doctrine and added a “Stand Your Ground” provision to its law on justifiable use of force in self-defense.[2] Since codification, the news and media are full of questionable cases involving justifiable use of force. These cases often lead to debate over the “real” victim. The cases involving Trayvon Martin, Jordan Davis, and Marissa Alexander all come to mind. At any given time, there are numerous cases in Florida where people are charged with crimes for which their attorneys hope Stand Your Ground will provide immunity from prosecution. The Tampa Bay Times examined the effects of Florida’s 2005 law in more than 200 cases (about half of them fatal) thorough mid-2012.[3] They reported that the law’s chief beneficiaries were “those with records of crime and violence.”[4] Nearly 60 percent of those making Stand Your Ground claims when a person was killed had been arrested at least once before; a third of those had been accused of violent crimes in the past; over a third had illegally carried guns in the past or had threatened others with them.[5] According to a 2012 National Bureau of Economic Research study, Florida-type Stand Your Ground laws were associated with a 6.8 percent increase in homicide.[6]

Since 2005, roughly half the states in the Union passed Stand Your Ground- type laws, or laws like Stand Your Ground.[7]  In May of this year, the New York Times published an op-ed by Robert Spitzer on the occasion of the 10th anniversary of the passage of Stand Your Ground laws in Florida.[8]  According to the op-ed, the Association of Prosecuting Attorneys noted that such laws generate hamstrung investigations, and legal protections greater than those afforded to police officers. An Urban Institute study found significant racial disparities in the adjudication of Stand Your Ground laws from 2005 to 2010. Based on F.B.I. data, the study reported that for gun homicides in non-Stand Your Ground states, the cases were ruled justified in three to eight percent of white-on-white, black-on-white, and black-on-black killings. But when the shooter was white and the victim black, the rate was 29 percent. In Stand Your Ground states, justifiable shootings results ranged from three to 15 percent in the first three categories.[9] However, when the shooter was white and the victim black, 36 percent of the shootings were ruled justified.[10]

Over the last decade the data along with the bodies have continued to amass. Even the United Nations Human Rights Committee acknowledged the incompatibility of these laws with the right to life under international law, during its review of the United States in March of last year.[11] A follow-up report to the U.N. submitted by the Dream Defenders, the Community Justice Project and the Campaign to Keep Guns Off Campus this May highlights the fact that little positive change has happened in the year since the review, and in fact the effects of Florida’s Stand Your Ground law has only gotten worse.[12]  Meanwhile, states across the country are removing barriers for students and other staff to carry loaded weapons onto university campuses, increasing the risk of gun violence at those institutions.   

Still, Florida’s Stand Your Ground law remains unchanged.  Statistics have shown that incidents of white-on-black violence are 350% more likely to be found as justifiable uses of force than in instances of white-on-white violence in Stand Your Ground states, as compared to a disparity of 250% in non-Stand Your Ground states.[13] These statistics suggests that a Stand Your Ground law exacerbates an existing disparity in the rate at which courts find deadly force to be justified in white violence against blacks versus white violence against other whites, effectively immunizing white violence against non-whites at a higher rate. However, the statistics on Stand Your Ground laws do not present a full picture of how these laws permit a criminal justice system to tacitly immunize white-on-non-white violence.  An in-depth look at the operation of these laws show that intrinsic biases within the criminal justice system also impact whether the defense is even available to non-white defendants.

Even when English common law began to recognize the general privilege of self-defense as a justification for the use of deadly force, the defense was strongly limited by the doctrine of necessity (the duty to retreat).[14] Generally, reasonableness is a vehicle for majoritarian norms, where the law uses reasonableness to determine guilt either subjectively or objectively. This is where the problem with Stand Your Ground laws lies:  they can disparately impact racial minorities by potentially granting immunity from prosecution based on a subjective approach to reasonableness. According to the Florida courts.

A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if … the person who uses defensive force knew or had reason to believe that unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.[15]

The court determines if a motion for immunity from prosecution due to justifiable use of force will be granted through an evidentiary hearing. In the hearing, the court determines by the preponderance of the evidence if the defendant subjectively believed that he had reasonable fear of imminent peril of death or great bodily harm. A determination by the preponderance of the evidence describes a legal burden of proof lower than the usual standard of reasonable doubt found in most areas of criminal law. The standard only requires a finding of an assertion to be more probable than not. This lower standard means that the defendant’s subjective beliefs should generally require less evidence to prove. However, for people of color in particular, a subjective standard of reasonableness can be problematic. This problematic issue of reasonableness gives valid motive for concern with, or without, a lower burden of proof. A subjective standard of reasonableness ignores the inherent harm caused by a defendant’s acts, allowing a defendant’s subjective belief in the need to use force to outweigh all other considerations.[16] Furthermore, a subjective standard can allow people to set their own standards governing permissible use of force,[17] yet it still requires the court to be able to comprehend the defendant’s perspective—something that creates inherent inequalities when it comes to race.

For a Florida criminal defense lawyer, Stand Your Ground laws place an unfair burden on the attorney of a non-white criminal defendant because the reality of the application of this subjective standard is that they must question whether or not their client will receive immunity from prosecution based on the client's race. These attorneys essentially have to question if a judge will be able to see their client’s beliefs as reasonable depending on their client’s race and culture, which tends in the favour of white defendants because the judge is often white, and majoritarian norms carry the day. Thus, the granting or denial of a motion depends on whether a judge can understand a defendant’s perspective, which is often tied to race. The inherent unfairness of these laws and the immunity they offer also cut the other way against non-white victims because of the difficulty for non-white victims of white violence to receive justice. The disparate impact of these laws thus amounts to an encroachment on a non-white person’s right to live. Because reasonableness often becomes a vehicle for majoritarian norms, despite whether or not these norms are moral or even legal, it is important to place limits on self-defense doctrine, as international standards of necessity and proportionality do. Stand Your Ground laws’ eschewal of these standards allow for subjective views on the use of force to enter the court. 

The U.S.’s extensive and sordid history of white vigilantism exacerbates the danger for people of color. The narrative of the protector-citizen who takes the law into his own hands ranges from mundane and fanciful to extreme and dangerous; Batman to Bernard Goetz. This narrative proves a consistent obstacle to the right to life. History in the state of Florida, as well as around the United States, has documented how people of color are often assumed to be criminal based upon their race. Presently, there is a growing body of research surrounding implicit bias, which has gained more relevance than ever in light of the brewing conversation around police killings and over-criminalization of Black and Brown communities. Several mental processes function implicitly, or outside conscious intentional focus.[18] Research has found that implicit processes include implicit memory, implicit perception, implicit attitudes, implicit stereotypes, implicit self-esteem, and implicit self-concept.[19] Implicit processes can encourage discriminatory behavior without the individual even recognizing that they are acting discriminatorily.[20] Immunizing discriminatory behavior cannot be acceptable because the discriminatory intent might be implicit. This would be tantamount to immunizing white violence against non-whites.

All people have an equal right to live. The criminal justice system of Florida and the federal government of the United States continue to be permissive in the violation of Florida’s non-white population’s right to life. Meanwhile, states across the country continue to adopt and further codify laws similar in purpose, and effect, to Stand Your Ground.  Morally, how can we be ok with a law that immunizes violence? Even if the law is constitutional, how can we be ok with the risk of justifying violence rooted in prejudice? How can we be ok with it, knowing that Stand Your Ground has violated and still violates non-white Floridians’ right to life? How can we be ok with the names simply exchanged for numbers via statistics? If we are not ok with these questions, then I would argue we must not be ok with the Stand Your Ground law of Florida.

[1] See U.S. Government Report in Response here: http://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/USA/INT_CCPR_FCO_USA_21976_E.pdf

[2] Fla. Stat. § 776 – Justifiable Use of Force

[3] Robert J. Spitzer, “Stand Your Ground Makes No Sense” The New York Times (May 4, 2015). Available at: http://www.nytimes.com/2015/05/04/opinion/stand-your-ground-makes-no-sense.html?_r=0

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Robert J. Spitzer, “Stand Your Ground Makes No Sense” The New York Times (May 4, 2015). Available at: http://www.nytimes.com/2015/05/04/opinion/stand-your-ground-makes-no-sense.html?_r=0

[9] Id.

[10] Id.

[11] Ahmad Abuznaid et al., “Stand Your Ground” Laws: International Human Rights Implications, 68 U. Miami L. Rev. 1129 (Fall 2014). Available at: http://lawreview.law.miami.edu/wp-content/uploads/2014/09/Stand-Your-Ground-Laws.pdf

[12] See 1-year follow up report here:  http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=INT%2fCCPR%2fNGS%2fUSA%2f20647&Lang=en

[13] Ahmad Abuznaid et al., “Stand Your Ground” Laws: International Human Rights Implications, 68 U. Miami L. Rev. 1129 (Fall 2014). Available at: http://lawreview.law.miami.edu/wp-content/uploads/2014/09/Stand-Your-Ground-Laws.pdf

[14] Stand Your Ground: Florida’s Castle Doctrine for the Twenty-First Century, Christine Catalfamo, 4 Rutgers J.L. & Pub. Pol’y 504 (Fall 2007)

[15] Peterson v. State, 983 So. 2d 27(Fla. 1st DCA 2008)

[16] Race and Self-Defense: Toward a normative Conception of Reasonableness, Cynthia Kwei Yung Lee, 81 Minn. L. Rev. 367 (Fall 1996)

[17] Id.

[18] Implicit Bias: Scientific Foundations, Anthony G. Greenwald; Linda Hamilton Krieger, 94 Cal. L. Rev. 945 (July 2006)

[19] Id.

[20] Id.